Unoriginal? Join the Illustrious Club

In 1995, Jill Sobule’s eponymous album included her song “I Kissed a Girl.” On the 2008 album, One of the Boys, Katy Perry released a different song with the same title—and it became a smash hit. Was this fair play or song theft?

About six months ago I
worked as a bandleader
and music director for the 2011
Mint Jubilee, a mammoth charity
gala that occurs on the eve
of the Kentucky Derby. The
acts we were working with were
American Idol winners Jordin
Sparks and Kris Allen—both
wildly talented, fun, and gracious
musicians. I’d not played
any current pop music for a
long time, so this was a welcome
change from my twangy
norm and a chance to catch
up on what’s happening in the
pop and rock world. But here’s
what really struck me: Although
these songs were fresh, hooky,
and inventive, their titles
were—like 75 percent of all
music—derivative.

We started with Kris Allen’s
“Live Like We’re Dying.” Allen’s
song has a great melody, and a
powerful message, but you can’t
help but notice that the title
is clearly taken from the 2004
CMA Song of the Year recorded
by Tim McGraw—“Live Like
You Were Dying.” With a
hook like this, the title is the
concept. The title demands
that you not stray far from the
idea of making the most of life,
because it’s going to end soon.
(As my Italian grandfather
Joseppi would say, “Memento
mori,” which essentially means
“Remember, you will die.”)
Granted, the title and message
were very close on the Allen
and McGraw songs, but the
grooves and melodies were
unique and Allen’s performance
was fantastic.

Allen’s second song, “Alright
with Me,” fell into a similar category.
This title has been a hit
for Cole Porter, George Strait,
Patti Labelle, Eric Hutchinson,
Tom Waits, the Zombies, and
many more. Again, Allen’s song,
like those by the other artists,
had its own thing, but the title
itself remains as unique as a
mid-sized, black roller bag in an
airport baggage claim.

Our next act, the lovely
Jordin Sparks, started her
set with the aching rocker
“Battlefield.” Sparks sings like
a combination of classic Ann
Wilson in “Barracuda” mixed
with “Natural Woman”-era
Aretha. I could hear her incredible
voice before it hit the
mic—cutting over my very loud
amp and thunderous drums,
bass, and thick key pads. That
said, Sparks’ “Battlefield” thematically
follows Pat Benatar’s
’80s anthem, “Love is a
Battlefield”—another case of
great titles being recycled.

Look at the song that broke
the adorable Katy Perry: “I
Kissed a Girl”—a sexy vignette
of hot girls making out (which
I am not going to hold against
anybody). Jill Sobule released her
song “I Kissed a Girl” in 1995,
complete with an MTV video
and modest radio play. Sobule
was working around Nashville
about the same time that the
teenage, Christian version of
Perry was recording and working
in Nashville, so it’s probable
that she heard it. Sobule is more
than a little pissed about what
she calls “song stealing,” but the
truth is, one cannot copyright a
title—whether in a song, poem,
book, or movie. You could
legally write a book called The
Holy Bible or Fight Club, though
I doubt many publishers would
want to touch it.

Look at William Shakespeare,
clearly no hack when it comes to
writing a story. By the time he
got around to writing Romeo and
Juliet, this story with this title
had been written before. The
plot is based on an Italian poem
called The Tragicall Historye of
Romeus and Juliet, published
by Arthur Brooke in 1562. In
1582, it was rewritten in prose
by William Painter. Bill S borrowed
a good deal of his version
from these two earlier versions.
Ultimately, Shakespeare
jump-started his imagination
with the earlier work, but made
it his own. It was the 1591
equivalent of the remaking of
Ocean’s 11 or True Grit.

I’ve had a few song-publishing
deals and a handful of my
songs recorded, but strangely
enough, some of my back
catalogs (one owned by Warner,
another owned by Sony) will
occasionally pay me on songs
I’m pretty sure have not been
recorded. These songs were
entered into these catalogs,
listed with BMI, but never
pitched to any artist I’m aware
of. Therefore, chances are that a
few dollars of my measly checks
may in part be from songs by
the same titles registered to the
same publishers and performing
rights societies. When I brought
this to Sony’s attention they
said, “Don’t worry about it. It’s
small change and it may even
be your song.” This makes me
think I should quickly write
songs called “Yesterday” and
“Sweet Home Alabama.”

There’s a great courtroom
scene in the 2008 film Flash
of Genius that illustrates what
constitutes an original creation.
The film tells the true story of a
guy named Robert Kearns who
takes on Ford Motor Co., who
he claims stole his idea for the
intermittent windshield wiper. In
court, Ford argues that Kearns
did not invent anything, but
merely strung together a few
capacitors. This is paraphrased a
bit, but Kearns rebuts by addressing
the judge and saying something
like, “Can you copyright
the word it or was or perhaps
the?” The judge replies, “No,
you can’t.” Then Kearns reads
Dickens’ A Tale of Two Cities,
arguing effectively that it’s not
the ingredients—be they words
or capacitors—but the order in
which one puts them that constitutes
an original creation.

Every songwriter is influenced
by other songs. That’s
why we got into the whole
creative exercise. Our minds
will make connections to what
we’ve heard and borrow at
will—sometimes stealing without
even knowing it. Outright
plagiarism is usually obvious,
but sometimes similar work
can result from different people
having the same idea. It makes
sense that if thousands of folks
sit around with a guitar every
day trying to make up a song,
some of these people will hit on
the same theme and phrases.

Long ago I read a quote from
Eddie Van Halen who said,
“There are only 12 notes and
how you string them together
is your style.” My first thought
was, “Wait a minute, there are
only 11 notes. The 12th note
is an octave.” Once I got over
that, Ed’s statement eloquently
summed it all up. Whether you
are writing notes for a melody
or writing words for a song, it’s
how you arrange the raw materials
that matters.

John Bohlinger is a Nashville multi-instrumentalist best know for his work in television, having lead the band for all six season of NBC's hit program Nashville Star, the 2011, 2010 and 2009 CMT Music Awards, as well as many specials for GAC, PBS, CMT, USA and HDTV.

John Bohlinger is a Nashville musician who has led the band on NBC’s Nashville Star and served as musical director of the CMT Music Awards for six years. In addition to his “Last Call” column, John recently joined PG as our full-time gear demo/Rig Rundown video dude.

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